citizen in punishment of crime, because the punishment is useful to the whole people, is for the common good, is preservative of the social life. Why, however, should the state be permitted to kill a criminal rather than an innocent man, since it has no dominion over the life of either, and we suppose the death of each is necessary for the public good? If you answer by saying a man may cut off a diseased member but not a sound one to save his body, and the state in like manner may cut off a criminal, unsound member, but not an innocent one, this answer does not remove the difficulty: we may cut off even a sound member to save the body. Suppose, for example, a man caught by the arm and in danger of death from a flood; he might sever a sound arm to escape death if no other means presented. In like manner the state might cut off an innocent, sound member to save its life from the enemy, as described above.
This reasoning, however, is open to objection. The state has no dominion over the life of its members, and there is a vast difference between the members of the human body and those of a body politic. A member of a human body has no right in itself against the other members; nor is it capable of natural injury, since it is not separable from the whole suppositum, or person. The suppositum, or person, has a right to the use of the members; it alone is injured when a member is amputated; and the members are solely for the utility of the suppositum. Therefore we may licitly destroy a member to save the suppositum for which this member exists.
The state, however, is not a suppositum in this sense; it may not wrest the life of its members to its own utility, because the citizens are not for the state; on the contrary, the state is for them and their utility. That a rational being should be for the utility of another person or a society makes him a slave and supposes dominion in the user. A slave is differentiated from a subject by the fact that the subject is only politically governed—that is, governed for his own utility and good; the slave is governed despotically—that is, for the utility and good of his master. The state may not, as a master, use the life of a subject for its own utility alone. Although the suppositum does not own its members, yet since the members are not separable from the man, are not self-centred as are the citizens in a state, the man may use them for his own utility. They are as slaves under a master, not as subjects in a body politic; therefore they may be sacrificed for the good of the suppositum.
This is the argument used by De Lugo; Molina follows the same line of thought; but both authorities finally reach the conclusion, in the case of the enemy and the citizen whose life is required, that the state may at least drive this citizen out of the city to save its own existence. Molina also draws attention to the fact that there is a great difference between a member of a body politic and a member of the human body; this identification, if pushed far enough, becomes an analogical quibble.
Some hold that a judge or the civil authority in general may kill or maim a criminal by gubernatorial power alone, prescinding from dominative power, and this not to the utility of the criminal but for the utility of society. The killing of a criminal, these objectors say, is not for the good of the criminal; it is a deterrent, a protective act, for the good of society. This is not true. The penal law which the criminal breaks was not made solely for society; it was intended also for the utility of the person who becomes a criminal. The law was made and the punishment established that all subjects indiscriminately should be helped to live honestly and blamelessly, and to this end it was necessary to decree and inflict punishment as affecting all offenders. The obligation to receive punishment is in a manner essential to man. As he naturally requires direction and government unto virtue in his political and social life, he has a connatural obligation to endure punishment when he violates the law made for his advantage—one condition cannot exist without the other. Hence punishment really is to the utility of the criminal.
CHAPTER III
When Does Human Life Begin?
By the embryologists from the moment the spermatozoön joins the nucleus of the ovum until the end of the second week of gestation the product of conception is called the Ovum; from the end of the second week to the end of the fourth week it is the Embryo; from the end of the fourth week to birth it is the Fetus. At what moment during these three stages does the human soul, the substantial form of a man in the full comprehension of the term, enter the product of conception? When does the thing become a human being?
The question is evidently one of the greatest importance. If the rational soul does not enter until the ovum has developed into an embryo, or only after the embryo has passed on into the fetal condition, the destruction of this ovum, by artificial abortion or otherwise, would be a very different act morally from such destruction after the soul had turned the new growth into a living man. If the product of conception has first only a vegetative vital principle, and this is later replaced by a vital principle that is merely sensitive, and this again is finally superseded by a rational vital principle, the destruction by abortion or otherwise of the vegetative or sensitive life would not be a destruction of a rational life. In this hypothesis the killing of the embryo would be a great crime, because the embryo would be in potency for the reception of human life, but the act would not be murder.
The discussion concerning the moment the human soul enters the body is older than Christianity, and it was taken up by many of the early Greek and Latin Fathers of the Church, and revived again and again down to the present day. Plato thought the soul enters at birth; Asclepias, Heraclites, and the Stoics held it is not infused until the time of puberty; Aristotle[15] said the soul is infused in the male fetus about the fortieth day after conception, and into the female fetus about the eightieth day.
Tertullian,[16] Apollinaris, and a few others advocated Traducianism,[17] or a transmission of the spiritual soul by the parents. He said souls are carried over by conception and by the parents, so that the soul of the father is the soul of the son, and from one man comes the whole overflow of souls. St. Augustine used the metaphor, one soul lit from another as flame from flame, without decay in either. Augustine was in doubt as to the origin of the soul, and inclined to traducianism, because it seemed to him better to explain the doctrine of the transmission of original sin. "Tell me," he wrote to St. Jerome in 415,[18] "if souls are created singly for each person born to-day, when do infants sin so that they need remission in the sacrament of Christ, sin in Adam from whom the flesh of sin is propagated?... Since we cannot say that God makes of souls sinners, or punishes the innocent, nor may we hold that souls even of infants which without baptism leave the body are saved, I ask you how that opinion can be defended which thinks that all souls are not made from the single soul of the first man, yet as that soul was one to one man, these are particular to particular individuals."
Again, St. Augustine said:[19] "I do not know how the soul came into my body; he knows who gave it, whether he drew it [traxerit] from my father, or created it new as in the first man." In the Book of Retractions,[20] speaking of the articles he had written against the Academicians before he was a bishop, he says: "As to the origin of the soul, how it is set in the body—whether it is from that one man who first was created ... or, as in his case, is made particularly for each particular individual, I did not then know, and I do not know now." St. Gregory the Great also said he could not tell whether the human soul descends from Adam or is given particularly to each man.
St. Gregory of Nyssa, however, who died about 385, thirty years before St. Augustine wrote the letter to St. Jerome, held that the soul is infused into the body at the moment of conception, and he argues with absolute precision for his opinion.[21] St. Maximus the Theologian, who was martyred in 662, inveighs[22] against the notion that the soul is vegetative at first, then sensitive, and finally intellectual, and he thinks the assertion of Aristotle that the fetus is not animated before the fortieth day is altogether untrue.
St. Anselm, who died in 1109, very dogmatically denied that the fetus is animated at conception,[23] and after his time the doctrine of Aristotle, which is commonly called the Thomistic opinion, became almost general. Vincent of Beauvais, however,